On November 4, 1959, the FTC issued its complaint against the defendants. Count I charged violations of Section 7 of the Clayton Act, arising from the acquisition by defendants in 1957 of two companies: "Sweets", a firm operating in the "Philadelphia Film Exchange Area",
*fn4"
and "Confection", a company operating largely in the "New York Film Exchange Area."
*fn5"
Count II charged the defendants with "unfair methods of competition" proscribed by Section 5 of the Federal Trade Commission Act
*fn6"
(FTC Act) and occurring in both the New York and Philadelphia Film Exchange Areas. This count repeated and incorporated by reference the charge of unlawful acquisitions as one basis of a Section 5, as opposed to a Clayton Act violation, and added alleged abuses which consisted of making preclusive loans and affording other inducements to customers, requiring preclusively long contract commitments from customers, and exacting favored treatment from suppliers.

Plaintiff's complaint, which was filed on September 12, 1960, is largely a catalogue of the anti-competitive abuses charged in the FTC proceeding. There is appended, of course, the critical allegation that defendants' conduct had an adverse economic impact on plaintiff.

The operations of the respective parties differ in that plaintiff is a wholesale merchant of candy and pop-corn selling to theater owners in the Philadelphia area, whereas defendants are concessionaires, selling directly to the public from vending machines and booths within client theaters located in both the New York and Philadelphia areas.

III.

Section 5(a) of the Clayton Act allows the use in private antitrust suits of decrees resulting from government actions as prima facie evidence of matters determined in the antecedent government suit which "would be an estoppel" between the government and the defendant. The proviso, exempting consent decrees "entered before any testimony has been taken" does not apply here because the FTC order was entered only after the hearing examiner had taken thousands of pages of testimony. And it is undisputed that the FTC order was "a final judgment or decree."

Defendants vigorously contend that since the FTC made no findings of fact the decree is evidence of nothing,
*fn8"
least of all that it constitutes an adjudication of liability. The findings and initial decision of the hearing examiner do not automatically become those of the Commission unless it adopts them in its own findings,
*fn9"
and there were no such findings here. Insofar as the FTC is concerned, argue defendants, the consent order adjudicates nothing at all; by the FTC's own rules, it is not an admission of law.
*fn10"
Therefore, they conclude that the FTC order is not "to the effect" that defendants violated Section 7 of the Clayton Act, and that even if it were, there would be no way to discern the scope of any resulting estoppel.

This latter purpose emerges from the proviso to Section 5(a) which exempts from the operation of the main provisions those consent decrees entered before the taking of testimony. Confronted with the impending peril of "double jeopardy" - a government victory followed by the pleadings of alerted private suitors - the defendant is more likely to enter into a consent decree before any testimony has been taken. The effect of the statutory scheme in this case urges plaintiff, is that since the defendants here did not agree to the entry of a consent decree until after the hearing examiner had taken testimony and announced his decision, the preclusive effects of Section 5(a) must obtain, notwithstanding the fact that the FTC promulgated no explicit findings or conclusions. Plaintiff points out that Congress must have intended some consent decrees to be encompassed by the main provisions of Section 5(a) for it specifically excluded only those consent decrees entered before any testimony has been taken. There is nothing in the language or purpose of the statute which compels specific findings of fact, and plaintiff argues that we ought not import such a requirement.

Furthermore, even if this decree were to the effect that defendants violated the antitrust laws, it would, at best, only show prohibited conduct in a market composed of the combined New York and Philadelphia Film Exchange Areas.
*fn11"

The relevant market for the purposes of the present suit is the Philadelphia area. Of course, it cannot be said that illegal behavior in a defined market area necessarily assumes anticompetitive conduct in any included portion of that area. Since we cannot say that the FTC order was "to the effect" that defendants violated Section 7, we need not reach the question of whether the decree would have any probative value at all as to the merits of this case.

Our decision also renders unnecessary any attempt to delineate those matters of which the FTC order "would be an estoppel" and hence prima facie evidence in the present action.

The Federal Trade Commission consent order will not be admissible in evidence nor may any reference be made to its existence or terms at trial.

It is so ordered.

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